John and Catherine Baldi at one time jointly owned land in
Epsom, New Hampshire that abutted property owned by Raymond
and Beryl Dow. In 1995, the Dows orally agreed to transfer
part of their land (the “24-Acre Parcel”) to the
Baldis in exchange for the Baldis' agreement to allow the
Dows to cut trees on a portion of the Baldis' property.
The parties agreed to make the transfer by means of a
boundary line adjustment. A plan depicting the proposed
boundary line adjustment was subsequently approved by the
Epsom Planning Board and filed in the Registry of Deeds on
May 18, 1995. Although no deed effecting the transfer was
prepared at that time, the Baldis thereafter paid all
property taxes on the 24-Acre Parcel and treated it as their
own in all respects.

Several
years later, on November 2, 2004, Baldi recorded a deed
conveying his interest in the 24-Acre Parcel to his wife for
nominal consideration. More than ten years later, on June 13
2015, Baldi obtained a quitclaim deed from the Dows
purportedly transferring any interest the Dows had in the
24-Acre Parcel to the Baldis as joint tenants. Baldi has
explained that he obtained the deed to remove any uncertainty
as to his wife's ownership of the 24-Acre Parcel.

I held
a hearing on the Browns' motion for writ of scire facias
on January 24, 2017. Baldi appeared at the hearing and
presented several arguments as to why the renewed writ of
execution should not issue. I rejected all of his arguments
except his claim that the writ should not issue because he
did not have an ownership interest in the property that the
Browns are targeting with their request.[3]

II.
STANDARD OF REVIEW

Writs
of execution are authorized by Federal Rule of Civil
Procedure 69(a)(1), which provides that the procedure on
execution in federal court to collect a monetary judgment
ordinarily “must accord with the procedure of the state
where the court is located.” New Hampshire law states
that writs of execution may be awarded more than two years
after a judgment issues “upon scire facias for the
amount then due.” N.H. Rev. Stat. Ann. §
527:7. “Scire facias is a judicial writ directing a
judgment debtor to appear and show cause why, after the lapse
of the limitation period, execution against him should not be
revived.” McBurney v. Shaw,148 N.H. 248, 251
(2002) (emphasis omitted). I therefore evaluate the
Browns' motion using the scire facias process specified
in New Hampshire law.

III.
ANALYSIS

The
principal question in this case is whether Baldi currently
has an interest in the 24-Acre Parcel that can be the target
of a writ of execution.[4] Unsurprisingly, the parties have
different perspectives on the issue. Baldi argues that the
Dows gave up their interest in the 24-Acre Parcel in 1995
when they agreed to the boundary line adjustment plan. At
that point, Baldi claims, he and his wife owned the property
as joint tenants. As Baldi sees it, he conveyed his interest
in the property to his wife in 2004 and the 2015 Quitclaim
Deed did not give him any new interest in the property
because, at that point, the Dows had no interest in the
property to convey. The Browns contend that the Dows did not
surrender their ownership interest in the 24-Acre Parcel in
1995 because the conveyance was never completed through the
delivery and acceptance of a properly drafted deed.
Accordingly, the Browns argue that Baldi did not obtain an
interest in the 24-Acre Parcel until the Dows deeded him that
interest in 2015. Because Baldi still holds that interest,
the Browns argue, it is an appropriate target for their
attempt to collect on their judgment.

New
Hampshire law favors the Browns on this specific point.
Although the Dows attempted to convey the 24-Acre Parcel by
means of a boundary line agreement, the statute authorizing
boundary line agreements permits them only when the location
of a boundary line is in genuine dispute. See N.H. Rev.
Stat. Ann. §§ 472:1, 4. As the leading
treatise on the subject notes, “[a] boundary line
agreement is a clarification of existing property rights -
not an agreement to adjust a boundary to a more preferable
configuration, or a swap of a part of one property for part
of another.” 17-10 Charles Szypszak, New Hampshire
Practice: Real Estate § 10.01 (2017).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;What
the Baldis and the Dows attempted to accomplish was a
conveyance. Real estate, however, must be conveyed by a
written deed. See N.H. Re v. Stat. Ann. &sect;&sect;
477:1, 15. In contrast, an oral conveyance, which is what
occurred here, gives the beneficiary only an estate at will.
See N.H. Re v. Stat. Ann. § 477:15. Thus, the
parties' 1995 oral agreement to transfer the 24-Acre
Parcel from the Dows to the Baldis was not completed until
the 2015 Quitclaim Deed was issued. Before then, the Dows
retained their ownership of the 24-Acre Parcel subject to
both an estate at will benefitting the Baldis and the
Baldis' ...

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